A woman in South Africa was recently sentenced for yelling very racist slurs at four black police officers. According to a New York Times article,

“Past racists who have come to court have been given very small fines and have been treated very leniently, and it didn’t serve any deterrence,” said Neeshan Balton, executive director of the Ahmed Kathrada Foundation, an anti-racism group. “I think this will be a deterrent.”

Although this happened in South Africa, what if it was in the US: a person charged much more severely than is usual. Would this violate the equal protection of the laws guaranteed by the 14th Amendment?

  • @TimLymington, is it correct to say that one is charged with a crime and prescribed a punishment? – Daniel Mar 29 at 16:09
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    You can be charged at any time by the police/prosecutor; before being punished you must be found guilty by a court. – Tim Lymington Mar 29 at 17:06

So first of all, the crime the woman was arrested for is not a crime in the United States (unless the slurs were used as she physically assaulted the officers). Hate Speech is protected under the First Amendment (Hate Crime is a charge tied to an ordinary crime that is motivated by bigotry on the suspect's part), so this wouldn't be put before a judge.

Now, if it was a crime, this can be argued as a violation of the 8th amendment to the Constitution, which holds that no one should suffer from "Cruel and Unusual punishment". Jail time for what is ordinarily a fine would be considered Cruel and Unusual and thus even if the guilt of the crime was legit, the sentence would be invalidated and retried.

It's important to note that finding of guilt and sentencing are usually two separate trial phases for felony crimes. Guilt asks "Did you do it?" where as Sentencing asks "Since we found you guilty, how hard should your punishment be?).

As a final note, the United States operates under Common Law (South Africa is Civil, I think). Common Law holds that any prior decision on similar situations should hold for every trial that comes after it. So if the crime was punished with a fine of X dollars in that jurisdiction, then all judges must rule the same crime X dollars in a fine. Arbitrarily assigning a harsher sentence should not occur and if it does, the court needs to show that the new crime is different than the old crime in such a way that it warrants a harsher sentence.

  • Thank you for this answer! In addition to violating the VIII Amendment, could one argue that it would violate XVI too because the law is being applied unequally? – Daniel Mar 29 at 16:06
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    ...I think you're overstating the precedential value of past sentences, here. – Stackstuck Mar 29 at 17:55
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    This is an inaccurate statement of how the 8th Amendment is applied under the relevant case law in the United States, even though it is a plausible reading of the 8th Amendment in the absence of how it has been interpreted by the courts over the last 200+ years. – ohwilleke Mar 29 at 20:10
  • @Dopapp: You're not wrong, but I tend to favor an argument from the bill of rights over XIV, if I can find one to make. – hszmv Mar 29 at 20:11
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    Also, FWIW, South Africa is an odd hybrid of civil law (drawing on Dutch law) and English common law (a subsequent colonial influence), with its own unique contributions arising from apartheid and its subsequent repeal. It isn't a very pure example of any of them. I recently handled a South African business transaction and the business contract and real estate documents there are just as much of a mish-mash of legal traditions as South Africa's law itself. – ohwilleke Mar 29 at 21:14

Probably not.

Prosecutors have absolute immunity from liability for their discretionary non-investigatory actions in criminal prosecutions (like deciding to prosecute and recommending sentences; they have qualified immunity for investigatory actions like preparing search warrants), and judges have absolute immunity from liability for their judicial action.

Sentences are reviewed on appeal on two standards. They are void if they exceed the statutorily authorized maximum sentence for the crime, and are reviewed for abuse of discretion if they do not. Past sentencing decisions imposed by trial court judges under the statute are not precedents that bind future cases.

Normally, a misdemeanor sentence that is less than the statutorily authorized maximum sentence for the crime will not be found to be an abuse of discretion by a judge unless a judge publicly states or strongly implies on the record that the reason for the sentence is an impermissible reason including one that would violate the 14th Amendment, such as race.

(A judge who stated a reason on the records that was race would also face judicial discipline proceedings and might be removed from the bench, but that wouldn't make the person sentenced any better off.)

I can imagine a case where a large statistical sample showed unequivocal racial basis where a class action lawsuit seeking to declare all or some portion of the entire criminal justice system in a state was unconstitutional as applied under the 14th Amendment, but even very strong statistical evidence of racial basis in death penalty sentencing has not prevailed in 14th Amendment litigation in the past, and those rulings are binding precedents. A case brought on that theory might not be frivolous and might get to trial, but probably wouldn't prevail on the merits.

The 8th Amendment likewise has been interpreted to be a dead letter in all but the most extreme cases. Sentences to life in prison without possibility of parole for recidivist offenders have been upheld for shoplifting, and a case sentencing someone to decades in prison for writing a bad check as a non-recidivist was considered a close call.

If the underlying conduct prohibited by the statue may constitutionally be punished as a crime, the likelihood of a misdemeanor sentence much more severe than is typical for that offense being overturned at all, let alone on constitutional grounds, is very low, even though it shows all of the trappings of unconstitutional racial discrimination in context.

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